AN EXAMINATION OF THE CAUSES OF JURISTIC DIFFERENCES IN INTERPRETATION IN ISLAMIC LAW

posted on June 27, 2018

AN EXAMINATION OF THE CAUSES OF JURISTIC DIFFERENCES IN INTERPRETATION IN ISLAMIC LAW

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction

It will be wrong for anyone to consider the divergent views of Muslim jurists (both early and present) on issues or matters as mere academic exercise. Differing is inevitable among mankind because of individual natural differences regarding thinking, understanding, power of assimilation, intellect, etc. Thus, differences and contradictions are a natural outcome. Allah The Most High says: “And if your Lord had willed, He could have made mankind one community; but they will not cease to differ”[1]

Texts under Islamic Law are general in their nature, and give room for interpretations. Some of the provisions from the Qur‟an are not opento interpretations. On the other hand, some of its provisions are open to different interpretations. Similarly, there are parts of the texts of Sunnah which are subjected to interpretations and there are some which are not. Some matters are neither expressly mentioned in the Qur‟an nor the Sunnah, and this is regarded as silence of the texts regarding them. This has made the jurists to develop some certain principles. The detailed texts found in the Qur‟an and the Sunnah according to the Islamic Jurists, are divided into four types as follows:

Texts which are definitive (qat‟iyyah) both in respect of authority and meaning.
Texts which are authentic in their authority but speculative (zanniy) in meaning.
Texts which are of doubtful authority, but definitive in meaning.
Texts which are speculative in respect to both authority and meaning[2]. Interpretation which gives room for decision or owing to opinion, does not apply to the first of the above categories, such as the clear provision (Nusus) concerning the prescribed penalties (Hudud) on the allocated shares (Furood) of inheritance both in the Qur‟an and SunnahAl-mutawatir (continuous Sunnah) that conveys definitive meaning. But interpretation can validly operate in regard to any of the remaining three types of texts[3].
Knowing the causes of juristic differences in interpretation under Islamic Law, helps in a long way, to overcome and at the same time to discard the blind following of one of the four major orthodox schools of Islamic Jurisprudence. The correctness of the orthodox interpretations was proportional to their innate capabilities and to the types and quantity of legal authorities (adillah) available to them at the time of making rulings. It is based on these facts, that the early jurists prohibited their followers from blind following in all aspects and disliked disagreement, as it has shown in their actual statements:

Abu – Yoosuf, Ya‟qoob, disciple of Imaam Abu Haneefah, reported that the Imaam once told him, “Woe be on you, Yaqoob. Do not write down all you hear from me, for surely I may hold an opinion today and leave it tomorrow, hold another tomorrow and leave it the day after”[4].

Ibn „Abdil-Barr reported that Imaam Maalik once said:

“Verily I am only a man, I err and am at times correct; so thoroughly investigate my opinions, then take whatever agrees with the Book and the Sunnah, and reject whatever contradicts them”[5].

Imam Ash-Shaafi‟ee stressed a very important point concerning personal opinion versus the Sunnah where he said:

“The Muslims (of my time) were of a unanimous opinion that one who comes across an authentic Sunnah ofThe Holy Prophet (peace be upon him) is not allowed to disregard it in favor of someone else‟s opinion”[6].

[1] Ali, A.Y. (1938) : The Holy Qur’an, The Islamic Foundation, United Kingdom, 3rd edition, Chap.11 :118. This translation is used throughout the work.

[2] Kamali, M.H. (1991): Principles of Islamic jurisprudence, Islamic Text Society, Malaysia, 2nd

Edition, p.316,see also, Nyazee, I.A.K. (2000): Islamic jurisprudence, Islamic Research

Institute, Islamabad,1st edition, p.148

[3] Ibid, p. 316-317, see also, Khalaaf A. (2010): Ilmu Usul Fiqu, Daral-Ghad Al-

Gadeed, Egypt, p. 238

[4] Philips, B. A. (1990): The Evolution of Fiqh, International Islamic publishing House, 3rd Edition, p.119, Al-albaanee,M.N. (nd): Sifatus Salaatin Nabiy, Maktabatul Mu‟arif,Riyad,

P.47

[5]Philips, B. A., op. cit., p.121, Al-albaanee, M.N. op. cit., p.48

[6] . An-Nawawee, M.Y. (nd): al-Majm’u,Vol.1, P.63,htt:www.mktaba.org, Philips, B.A., op. cit., P. 122, al-Albaanee, M.N., op. cit., p.50